Smart wearables and athleisure: the legal challenges

By

Subhash Bhutoria

Subhash@kridalegal.com

Krida Legal

Shrita Suri

shritasuri@kridalegal.com

Krida Legal

4 Nov 2018 , 4:34pm

Smart shirts, wearable technology and intelligent fabrics have changed the fashion and sportswear business and both the knowns and nobodies are keen to reap the benefits. Subhash Bhutoria, Partner and Shrita Suri, Fashion lawyer, both at Krida Legal, look at the legal implications of this technological advent.

Smart wearables

In a special issue of LIFE magazine, published in 1998, Sarvint Tech’s Smart shirt technology was listed as one of the 21 breakthroughs that could change life in the 21st century. Now the market is flooded with smart wears and devices, ranging from polo tees to wrist watches to jewellery. With IoT becoming a new normal, as well as the growing health consciousness amongst the public and easy availability of products, the market of smart clothing and wearables is seeing tremendous growth worldwide. Competing companies range from Fortune 500 to tech startups. Technology is used to create and use big data and hence its widespread application in smart wearables and clothing is obvious.

Rights

The technology of smart wearables and clothing involves extensive research, development, designing and branding, which are protected under various intellectual property rights. Wide application of technological components and process provide avenues for creating exclusivity as well as to generate revenue from licensing. In 2014, Sarvint technologies sued several leading sports apparel brands, including Adidas and Ralph Lauren, for allegedly infringing upon its patent of a novel fabric based sensor for monitoring vital signs. Adidas had also filed a patent infringement suit against Under Armour alleging infringement of its MiCoach athletic activity monitoring system. For the niche market of smart wearables and athleisure, patent plays an extremely crucial role and hence is valued immensely. Further, design is integral to smart wearables and clothing. In fact, news reports suggest that Mr. Paul Deneve of YSL joined Apple Inc. to design the Apple watch. A great amount of time and resources is often involved in creating the right design to make wearables attractive, appealing and comfortable to wear. In addition to the brand, the design elements also become important for differentiating the products of one from the other and hence are an important IP for the owner. In India, apparels are largely subject matter of design protection and the design of smart wearables and athleisure can be protected under the said regime.

Liabilities

Unlike mobile devices, smart wears are designed to collect and assess discreet and crucial information relating to the health and fitness of the user. Adidas’s US patent for wearable athletic monitoring systems succinctly describes the purpose of such wearables, which is for recording information about an individual's performance during an athletic activity using sensors, and in some cases providing feedback about the individual's performance. The “smart” play of wearable technology has led to an accumulation of extensive personal and sensitive data or the big data. While data relating to heart rate, blood pressure, speed, location and so on, generated by smart wearables and athleisure, can be extremely helpful for the wearer, its misuse can lead to serious consequences. The personal and sensitive data of the wearer, which is generated by the sensors and is transferred to and accessed even by third parties, mandate clear terms of use and privacy policy, which is aligned with the existing data protection laws.

Injury to the individual

Smart wearables and athleisure also pose a risk of providing inaccurate information, which may result in harm or injury to the wearer. In the past, wearables were recalled for causing skin irritation. Smart wearables function autonomously, which increases their liability more than that of other products.

Human intervention

Smart wearables and athleisure are increasingly used by the public and hence it is important that the owners of such technology must take into consideration the laws relating to these products. Smart wearables almost nullify human intervention and hence fixing liabilities on account of any misuse, defect or deficiency, may become a challenge for all the stakeholders.